July 18, 2007

"This is not a legal proceeding"

A facility at Guantanamo where some review tribunals are held. U.S. Navy photo July 2004

In my piece for the Columbia Journalism Review about Sami Al Haj, the Al Jazeera cameraman detained in Guantanamo, I included a brief scene describing his Administrative Review Board hearing, the annual tribunal held to determine whether a detainee should continue to be held in Cuba. There was a lot of material that I couldn't include in the piece due to space constraints. The Department of Defense has released hundreds of the hearing transcripts, and only by reading through some of them do you get a sense of how farcical these proceedings are. A lot of them read like bad Samuel Beckett. The panels operate on the assumption that a person has already been correctly identified as an enemy combatant. Detainees aren't presented with charges, but with a "summary of evidence." Neither he nor his lawyer (if he has one), is allowed to see the evidence being summarized. Lawyers can't attend the hearings. Instead, each detainee is assigned a military representative who is obliged to tell the review board anything he learns about the detainee. Al Haj's lawyer told me that once Al Haj attended his hearing and noticed that one of the presiding officials was his military representative from a previous year.

Sometimes, a detainee is presented with a serious charge, like attending an Al Qaeda training camp. Sometimes, the allegation will be something more circumstantial. For instance, at least eight detainees have been accused of owning a model of Casio watch “that has been used in bombing linked to radical terrorist improvised explosive devices.” Often, the line of questioning seems rather irrelevant to the acts the detainee is said to have committed. Here's an excerpt from one of Al Haj's hearings (his lawyer had instructed him not to answer questions):

Presiding Officer: Thank you very much. Your English is very good. Before we get started I just want to make sure that you understand that this is not a legal proceeding today. This is strictly an administrative procedure to determine whether or not you'll be detained, transfered or released. This is not a legal proceeding, which is why we don't have lawyers or etc. None of us are lawyers; we are not here to present ourselves as attorneys. That's not what this proceeding is about; it is an administrative proceeding for you. So the more questions you answer will help us make a decision. Do you understand?Al Haj: Yes, I understand, but I'm sorry, because I'm supposed to follow my attorney.PO: Okay, unfortunate for the purpose of this proceeding.Designated Military Officer: Sir, have you gotten any communications from your wife, since you've been here?AH: I'm supposed to follow the advice of my...PO: This question is not relevant to any of the charges. He just asked if you've been hearing from your wife. In fact, you talked in your statement about how much you missed your wife. He's just asking if you gotten communication from your wife?AH: Surely, I've received some letters from my wife, but unfortunately it is not continuous communication, that means one year I missed the news, after that five months or six months, I can get one letter.[snip]Board Member: Sir, I don't know if you'll be able to answer any of these questions... if you prefer not to answer them, but I will ask you anyway.AH: If you ask me some questions, do I have the right to answer them or not?PO: Yes, you do. You're not compelled to answer. He'll ask them and if you can answer none of these, it doesn't help us, but if that's what your attorney advises... that's unfortunate. You can only answer what you can answer. At this proceeding, you're not required to answer any questions.[a number of questions about various Islamic charities; Al Haj indicates that he can't answer.]PO: Your son you said was 15 months old, one year and three months, last time you saw him.Detainee: ... Yes.PO: How many countries did you travel to when you worked for Al Jazeera? Did you travel to many countries?AH:Detainee nods negatively and speaks almost in a whisper saying "I cannot answer."PO: You can't answer that.AH: Detainee nods affirmatively.PO: You say your wife is currently in Doha, Qatar? Is that where she is right now?AH: I don't know. According to her last letter she [wrote it] from Azerbaijian.[snip]PO: ... How long did you work for Al Jazeera?AH: I can't.PO: What do you think of Usama bin Laden? Do you have any thoughts at all of Usama bin Laden?AH: Can't answer that.PO: What about the Taliban? You've had an opportunity to view them as a journalist? Did you... what did you think of the way the Taliban ran Afghanistan?AH: Actually I have the answers to all [these] questions, but I'm sorry, I'm supposed to follow the advice of my lawyer.PO. Thank you. Again, just so you know this is not a legal proceeding, this is just strictly an administrative proceedings. These kinds of answers are very important to us. Our job is to determine...AH: If my lawyer were here, I would answer all these questions. It is very easy for me. My life is very clear. I didn't hide anything in my life.[snip]Board Member: I have one final question. If you had answered questions, perhaps our decision would have been different. Would you now be disappointed that you didn't answer those questions?[snip]AH: ...as I told you in the beginning, I don't have any bad grounds. I didn't went... go to or admit any legal case before in my life and I didn't went to jail in all my life...in past. I don't have any experience. So what I know, because of [my] University degree and from my experience, I'm supposed to follow my lawyer. That's why.PO: Mr. Al Hajj, thank you for the answers you have given us. Again, I just advise you that this is an administrative, not a legal proceeding. Any information that you give us helps us to make a better... make a better recommendation. All we do is we recommend and I'll go through that in a moment on how this process concludes, but any information you give us would have been helpful. We understand the advice of an attorney that's not our decision to make whether or not that's good advice or bad advice. We have no opinion on that. We only know that we make a decision based on the information you give us. More information is better information, but if choose not to. You choose not to. Just so you know that could affect the decision, because more information allows us to make a better decision. Thank you.